Rose v Sumner & Chase [2003] ACTSC 64 (11 August 2003)

Last Updated: 15 August 2003

PATRICIA ROSE v VERONICA LOUISE SUMNER &

KAREN SELENA CHASE

[2003] ACTSC 64 (11 August 2003)

CATCHWORDS

DAMAGES - personal injury - hand and wrist injury - post-traumatic stress disorder - depression and anxiety - no issue of principle.

No SC462 of 2001 & SC 640 of 2002

Coram: Master Harper

Supreme Court of the ACT

Date: 11 August 2003

IN THE SUPREME COURT OF THE )

) No SC 462 of 2001

AUSTRALIAN CAPITAL TERRITORY ) No SC 640 of 2002

BETWEEN: PATRICIA ROSE

Plaintiff

AND: VERONICA LOUISE SUMNER

First Defendant

AND: KAREN SERENA CHASE

Second Defendant

ORDER

Coram: Master Harper

Date: 11 August 2003

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff against the defendants in the sum of $355,502.36.

1. 1. The plaintiff, Patricia Edith Rose, was born on 12 November 1958 and is forty-four years of age. She is a married woman and lives in Canberra with her husband and two children, a daughter aged twenty-two and a son of eighteen. She has brought actions for damages for injuries which she suffered in two motor vehicle collisions.

2. The first of the collisions occurred on 14 December 1998 at the intersection of Yamba Drive and Hindmarsh Drive, Garran, and the second took place on 29 September 2000 at the intersection of Anketell Street and Cowlishaw Street, Greenway.

3. Fortuitously, negligence is admitted on behalf of the defendant in both actions, there is no allegation of contributory negligence, and the vehicles being driven by the two defendants were covered by policies of third party insurance issued by the same authorised insurer. In the circumstances, during the course of the hearing I ordered, pursuant to Order 51 rule 1, that the actions be consolidated.

4. The plaintiff was born in Victoria. She left school after Year 9, and ultimately obtained a certificate as a chef, following some years of employment in cafeterias, hospitals and retirement homes. In about 1987, the family moved to Albury, where the plaintiff continued with a similar pattern of employment. She also had some casual work with a private catering firm, assisting with weddings and other functions from time to time.

5. At the end of 1997, the family moved to Canberra, for reasons associated with the plaintiff's husband's employment. The plaintiff applied without success for work as a chef at two nursing homes. She did not pursue this further because the available work was in split shifts, which did not suit her family arrangements. At the beginning of 1998, her son started in Year 7 at Caroline Chisholm High School, and the plaintiff undertook some voluntary work in the school library. She became aware of the availability of employment as a teacher's aide with the ACT Education Department, and she made application for this work. She obtained a position at Theodore Primary School in November 1998, about a month before the first accident. She was working for 31 hours 15 minutes per week. She was paid for the hours worked, which, because of school holidays, were available for only thirty-eight weeks a year.

6. On 14 December 1998, the plaintiff was driving from her home in Tuggeranong towards Curtin. As she was proceeding along Yamba Drive across the intersection of Hindmarsh Drive, her vehicle was struck by a car which apparently came through a red light from her left. There is a suggestion that her vehicle rolled over, but it seems to have come to rest on its wheels. Whilst the precise mechanism of injury is unclear, there is no question that the plaintiff suffered a degloving injury to the dorsum of the right hand. She was conveyed by ambulance the very short distance to the Canberra Hospital where the injury was treated by Dr Tony Tonks, plastic, cosmetic and hand surgeon. There was no fracture, and surgery was unnecessary. The treatment consisted of elevation, antibiotics and splinting.

7. The plaintiff was discharged on the second day after the accident with a plaster back-slab. This was removed a week later, and a week after that the remaining sutures were removed. The plaintiff developed reflex sympathetic dystrophy, and was unable to use her right hand, which is her dominant hand, due to extreme pain. X-rays in June 1999 showed deformity of the distal radial joint with flattening of the articulation and some loss of joint space, which Dr Tonks described as consistent with the injury and the subsequent period of immobilisation and diminished range of movement which she experienced in the post-operative period. Dr Tonks took the view that the plaintiff would be left with permanent disability in the form of scarring to the back of the hand and web contracture, reducing her ability to spread her fingers, and also deformity at the distal radial ulnar joint. He estimated the combined disability to represent approximately 3% of total body function.

8. In January 1999, the plaintiff commenced an intensive program of physiotherapy, having twenty-four sessions over the following four months. In February 1999 she went back to work at Theodore Primary School but was basically only able to use her left hand.

9. On 26 February 1999, she consulted Dr Patrick O'Callaghan, a general practitioner at Gowrie. He noted that the plaintiff was very angry and upset. She was angry at the accident itself, and also because of her slower than expected recovery. She was distressed and tearful. Dr O'Callaghan gave her a referral to Mr Leigh Nomchong, a clinical psychologist.

10. Dr O'Callaghan continued to see the plaintiff, initially at weekly and later at monthly intervals. He felt that the plaintiff was a candidate for a major depressive illness, and prescribed Prothiaden, a tricyclic anti-depressant.

11. The plaintiff first saw Mr Nomchong on 5 March 1999. He has continued to see her at fortnightly to monthly intervals. A number of his reports were tendered, and he gave extensive evidence at the hearing. His opinion is that the plaintiff suffered post- traumatic stress disorder as a result of the first accident, which was exacerbated by the second accident. It had largely abated by mid-2002, although she continued to suffer from major depression, anxiety, and phobia related to car travel. He expressed the opinion in a report in September 2001 that, her depression and anxiety having been established for at least two years by that time, it was reasonable to expect that the condition would continue to persist for at least the same amount of time into the future. He affirmed this opinion in a report in August 2002, but noted that her recovery had been very slow and hampered by environmental stresses. She had been demoralised by the pain and dysfunction caused by her injuries in the two accidents, and this was a significant contributor to her depression. Whilst Mr Nomchong was not specifically cross-examined about this opinion, I take it that his present view is that the plaintiff's psychological symptoms, which are still present, are likely to persist for at least a period of time equivalent to the time since the first accident, now approaching five years; and that the abatement of the psychological symptoms will be dependent, to some extent at least, on the extent of her recovery from her physical injuries.

12. In late April 1999 the plaintiff commenced work as a teacher's aide at the Campbell High School. However, she developed increasing pain in the right wrist, and Dr O'Callaghan referred her to Dr Chris Roberts, Orthopaedic Surgeon. On 20 May 1999, the plaintiff complained to Dr O'Callaghan that the constant repetitive lifting and placing of books in the library at Campbell High School was exacerbating the pain in her wrist, causing a constant ache, which settled on weekends but flared up on going back to work. Dr O'Callaghan formed the view that her work was not helping her and certified her unfit for work until she saw Dr Roberts in early July. It is clear that Dr Roberts prepared reports dated 8 July 1999 and 15 September 2000: copies were provided by the defendants' insurer to a consultant psychiatrist, Dr J.D. Swift, who gave evidence in the proceedings (see page two of Dr Swift's report of 30 October 2001). Dr Roberts' reports were not tendered in the plaintiff's case, and he did not give evidence. There was no explanation for this, but the absence of his reports was not the subject of any comment by counsel for the defendants, and I draw no inference adverse to the plaintiff from their absence. It may be that their omission was due to oversight. Dr Swift records that the plaintiff was diagnosed by Dr Roberts as having some wound tethering and signs of sympathetic dystrophy of her hand.

13. The plaintiff recommenced work on 19 July 1999, at Theodore Primary School, working twenty-five hours a week, and worked there for the rest of that year. In December 1999, she was referred by her solicitors to Associate Professor W.B. Conolly, a practising hand surgeon with academic appointments to the Universities of Sydney and New South Wales. On examination he found some restriction of movement in the right wrist, accompanied by tenderness to deep pressure and painful swelling and stiffness. He thought that she might need surgical correction of the scarring on the back of the hand, and that she might have suffered ligament injury. Further investigation was in his opinion required, including arthroscopy. He thought that she was fit for selected duties not requiring heavy gripping or repetitive work with the right hand, and accepted that she was not able to lead a normal life at home or at work because of painful stiffness in the right hand and wrist. He regarded the psychological complaints as not surprising in view of the severity of the injury and its after-effects.

14. He saw the plaintiff again in May 2002. She still had discomfort in the right wrist accompanied by some reduction in flexion and some tenderness to deep pressure. Her reflex sympathetic dystrophy had subsided. He changed his opinion in relation to the need for an arthroscopy, and did not advise any further investigation. He thought that perhaps she should have a review once or twice a year by a hand and wrist surgeon. Her subjective complaints were related to a great extent to her depression. Her difficulty around the house would lessen with time, and physically she was fit to resume work as a school library assistant, although he understood her fear of driving.

15. For most of the year 2000, the plaintiff continued to work at Theodore Primary School, 25 hours a week, increasing from mid-July to 31.25 hours. She continued with her treatment by Mr Nomchong for depression. Her symptoms in that regard included irritability, mood swings, sleep disturbance, fatigue, poor concentration, poor comprehension and memory. Because of a house move to Monash, the plaintiff changed general practitioners, moving to Dr J.V. Brown from the end of February 2000. By May 2000, Dr Brown took the view that the plaintiff was physically capable of light clerical duties, but that she would be left with some permanent disability in the right hand and wrist, which at that point appeared to her to represent a five to ten percent disability, although the accompanying psychological impairment was at that time markedly impairing the plaintiff's capacity to lead a normal life.

16. On 29 September 2000, the second accident happened. The plaintiff's car was struck from behind while stationary. She was taken to hospital by ambulance. She was noted to be hysterical, tachycardic and hyperventilating. She complained of low back pain, and developed neck pain the following day. She was treated at the accident and emergency department at the Canberra Hospital but not admitted. She developed a migraine headache. She saw Dr Brown on 4 October, presenting with muscular tenderness in the neck and low back and pain at the extremes of spinal movement. She also displayed symptoms of an acute anxiety reaction. Dr Brown referred her to a physiotherapist who treated her on nine occasions. She saw Dr Brown approximately fortnightly throughout 2000 and 2001.

17. In late January 2001, having discontinued her antidepressant medication, she suffered a severe attack of depression, including thoughts of suicide, and was admitted to the psychiatric unit at Calvary Hospital on referral by Dr Brown. She was diagnosed as suffering from dysthymia as well as post-traumatic stress disorder and pain syndrome. She spent five days in hospital, and was discharged on a different antidepressant.

18. In March 2001, the authorised insurer arranged for the plaintiff to be assessed by an occupational therapist, Ms Bruyn, who made recommendations which included the plaintiff's attendance at a rehabilitation program, and also referral to an occupational physician, Dr D. Dowda. Dr Dowda saw the plaintiff at the end of May 2001. He reported that there had been a general pattern of improvement in relation to the hand injury suffered by the plaintiff in the first accident, although there were residual symptoms in the right forearm and right hand. He said that the second accident had been associated with soft tissue damage to the neck, possibly with resultant facet joint irritation secondary to aggravation of arthritic changes in those joints. The lower back injury had all but resolved. The plaintiff was left with residual problems associated with the neck, including pain and stiffness precipitated particularly by cold weather and winds, which led to migraine if allowed to continue. He thought that physiotherapy had achieved a significant degree of recovery of function in the right hand. The range of movement of the hand and joints had all but returned to normal, and the only continuing restriction was in flexion of the right wrist. He thought that her chronic pain might be associated with depression. Anxiety and depression were not unexpected outcomes of her injuries. Her previous history suggested a vulnerability to depressive illness, which would have to be managed sensitively by her treating doctors and carers. He accepted that her working capacity was limited, but thought that she was capable of working two days a week as a library assistant. She was not physically capable of work requiring lifting, carrying, pushing or pulling or protracted bending or twisting of the neck, and she would not be able to carry out work requiring fine dexterous activity involving the right hand, such as computer keyboard work. He was hopeful that she would benefit from a pain management course.

19. The plaintiff was offered a place in such a course, conducted by the pain management unit of the Canberra Hospital, with the assistance of the insurer. This included six sessions of physiotherapy, which led to some improvement but not complete resolution of her physical restrictions. Her depression levels worsened during the course, at the end of which it was reported that her general activity levels had possibly decreased, although there had been some improvement in the function of the right arm and hand.

20. In mid-March 2001, the plaintiff was offered work at Copland College at Melba, a north-western suburb of Canberra, many kilometres from the plaintiff's home. After two days, the plaintiff found that she could not continue, because she could not cope with driving herself to and from work. She was able to cope with driving short distances in light traffic, but the Monash-Melba trip was too much for her. The plaintiff did not work again until the beginning of 2003.

21. At the commencement of the 2003 school year, the plaintiff started a new job at Forrest Primary School. She enjoyed the work but found that there were a number of activities she was unable to cope with, and on 24 March, on the advice of her general practitioner, Dr Brown, she gave up work. She was able to cope with driving from Monash to Forrest during that period of employment.

22. Prior to her injuries, the plaintiff had enjoyed making and icing cakes for special occasions such as weddings and anniversaries. She was particularly skilled at this. Photographs of some of her cakes were tendered in evidence and attest to her outstanding ability. She won prizes and awards over a period of years. Since the first injury, because of the restriction of movement in her right hand, she has been unable to resume this activity, which was a source of enjoyment and pride to her. She attempted to make a cake for a friend's fiftieth birthday earlier this year but was unable to cope with it. In her own words, "nothing was working properly. The fingers just wouldn't do what they were supposed to do".

23. In November 2002, the plaintiff was referred by her solicitors to Dr I.J. Isaacs, a hand surgeon and reconstructive microsurgeon in Sydney, for opinion. He diagnosed a minor residual flexion contracture of the middle finger and slight dorsal web tightness in the third interdigital cleft of the right hand, associated with noticeable scarring. He did not think that this could be improved by surgery. He said that she would have difficulty performing highly repetitive work with the right hand. He accepted that she would be unable to work again as a chef, and that she would have difficulty with cake decorating. He thought she was fit for light clerical work involving rotating tasks with a small amount of data entry and computer use. He assessed the plaintiff as having ten per cent permanent loss of efficient use of the right arm below the elbow.

24. The plaintiff was seen in October 1999 by Dr P. Dewey, orthopaedic surgeon, for the purpose of a report to the insurer. He inspected the scarring, which he described as "not ugly", and he found no contracture. He expected that she would experience discomfort in her hand for a prolonged period, but said that the overall prognosis was good. He noted a minor degree of reflex sympathetic dystrophy which he thought would resolve over time. Dr Dewey did not see the plaintiff again. His optimism about the reflex sympathetic dystrophy has been borne out